By: Claire McDowell
The following contains legal information and not legal advice. Should you need legal advice pertaining to your matter and are within Ontario, please contact our office for a free consultation appointment.
Often times, when commencing the process of separating, and ultimately divorcing from your spouse, people will have consultations with family lawyers to get advice about how to proceed. Often it will be recommended to those individuals that attempting to negotiate and enter into a Separation Agreement is the most cost-effective and expeditious way to proceed, and that parties should attempt to do so first, before getting family Court involved.
However, there are circumstances that would preclude doing so. In order to come to an agreement with respect to the terms of a Separation Agreement, that parties need to be able to communicate at least to a certain degree, usually through counsel, in order to come to an agreement that both parties can live with. As such, there are numerous situations wherein negotiating and coming to an agreement are not the best or most practical option for parties, including but not limited to parties not being able to set aside their emotions for the sake of negotiating, situations where there are significant issues relating to children of the marriage, parties who are not cooperative with the process or willing to provide required disclosure, among many other situations. Should your matter fall under that umbrella, there is a significant chance that counsel will suggest, either upon meeting with you for a consultation appointment, or once retained, that it would be in your best interest to commence divorce proceedings in Family Court, which would generally lead to attending Court appearances.
Should you or your partner make the decision to start a Family Court Application, you will ultimately end up in front of a Judge by way of either a Conference or a Motion. There is a distinct difference between these kinds of appearances and the way that the Court is involved. In a regular Application process to the Family Court, without any extenuating circumstances, the parties generally first attend a Case Conference, which will be the parties’ first time before a Judge. They will meet with the presiding Judge, explain their respective positions on the outstanding issues, and the Judge will provide feedback with respect to their interpretation of the issues, and the likely decision that a Judge would make on a Motion. It is important to note that, at these appearances, Judges are usually there to provide guidance to the parties in the hopes that, having heard the Judges recommendations, they will be able to further negotiate and come to either an interim or final agreement with respect to the issues.
This part of the process is extremely important as it allows the parties to glean a deeper understanding of their position in the overall matter, and, if the Judge indicates that there is a clear solution to the issues at hand, that would likely be ordered by a Judge should the parties advance to a Motion or ultimately trial, the parties may be swayed to the point of negotiating an agreement on those points, allowing them to move forward in an expeditious manner, and ultimately saving both parties significant resources. One of the primary goals of the Family Court in Ontario is to provide parties with the tools required to make informed decisions for themselves, and this process assists parties in doing so.
Should there be significant issues facing the parties that they cannot reconcile with the assistance of counsel or a Judge at a Conference, the parties will often bring a Motion to request a Court date wherein a Judge will once again hear that parties’ perspectives on the issues, and will be able to present evidence to support their claims. Other than a trial, this is the Court appearance wherein a Judge will do more than provide guidance, but will make an interim Order based on the submissions made that the parties are henceforth obliged to follow. This kind of Court appearance is equally important to a Conference; however, the goals are very different. Should one party not succeed, and the Judge finds that their actions were not reasonable, there is a significant chance that an Order for Costs payable to the opposing party could be made against them. It is imperative that parties attending a Motion ensure that they have evidence to support the claims that they are making, and that the position that they are putting forth is reasonable.
All this to say that Court appearances in divorce and separation proceedings can be extremely beneficial for the parties, as they allow the parties more insight into their legal standing based on the facts and circumstances surrounding their matter. Many Family Law matters settle on a final basis prior to getting to the trial stage, which is in line with the goals of this system. If the parties did not have the opportunity to attend Conferences and Motions before moving to the trial stage, they would miss out on a significant opportunity to negotiate agreements that will work best for their family and themselves moving forward, and would waste significant time and resources doing so.
Disclaimer: For specific legal advice on your family law matter, please consult with a family law lawyer. The content in this article is not intended to act as legal advice and is instead intended to act as a general overview of a legal topic.